The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Wednesday, 2 March 2011

"Counter-terrorism powers" - The Protection of Freedoms Bill - No.6

The United Kingdom has very extensive "anti-terrorism" legislation. The modern history of this perhaps begins with the enactment - over just two days in November 1974 - of the Prevention of Terrorism (Temporary Provisions) Act 1974. This was presented as the government's response to the Birmingham Pub Bombings - (Mulberry Bush and Tavern in the Town) - on 21st November 1974 though it is now clear that the legislation had been drafted previously (here). There were public marches demanding that Parliament restore the death penalty. In the event, six men ("The Birmingham Six") stood trial at Lancaster Castlebefore Bridge J (later Lord Bridge of Harwich) and a jury. They were convicted of murder and sentenced to life imprisonment. In 1991, at their third appeal, the convictions were quashed. In the light of this and certain other miscarriage of justice cases, a Royal Commission on Criminal Justice was set up which reported in July 1993. Between 1974 and the end of the 20th century the Prevention of Terrorism (Temporary Provision) Acts held sway but they were replaced by the Terrorism Act 2000. Since then there have been the following major enactments concerning terrorism: Anti-terrorism, Crime and Security Act 2001, Prevention of Terrorism Act 2005 and Terrorism Act 2006

Whilst obviously aimed primarily at terrorism, a considerable number of civil liberties concerns arose due to perhaps over-zealous application of some of the provisions especially Terrorism Act 2000 sections 43-47.. There are two "stop and search" powers - section 43 and 44. Section 43 requires reasonable suspicion that the person stopped is a terrorist. Section 44 enables the police to stop and search any person or any vehicle within an authorised area so as to search for articles of a kind which could be used for terrorism. The Police could seize and retain cameras, mobile telephones etc. People taking photographs of iconic buildings in London and elsewhere were challenged - see Telegraph 3rd December 2009. In Gillan and Quinton v U.K., the European Court of Human Rights found section 44 to be in breach of Article 8 - (see also here). Will the Protection of Freedoms Bill make matters better? The Bill amends the Terrorism Act 2000 and the Terrorism Act 2006.

The Bill (Clause 58) tells us that sections 44 to 47 of the Terrorism Act 2000 are to be "omitted." Terrorism Act 2000 s43 deals with searches of persons reasonably suspected of being terrorists. Currently, s43(3) requires a search of a person to be carried out by someone of the same sex. Clause 59(1) of the Bill omits this requirement. It is not entirely clear why this requirement has been removed and the explanatory notes are silent on this point - (but see Schedule 5 of the Bill regarding some limitations on how searches may be conducted). Clause 59 then goes on to insert new material into the 2000 Act so that, if a person is stopped on reasonable suspicion of being a terrorist, his vehicle (and anything in or on it) may also be searched to see whether there is anything which may constitute evidence that the person is a terrorist. Items discovered may be seized and retained.

Clause 60 is concerned with replacement of the power previously in section 44. A revised stop and search regime will be put in place to enable a "senior police officer" to give an authorisation in relation to a specified area or place if he reasonably suspects that an act of terrorism will take place. He must consider that such an authorisation is necessary to prevent such an act and the size of the area and the duration of the authorisation must be no greater than necessary. Under Clause 61 there will be Code of Practice dealing with the exercise of these powers. Failure to comply with the court will not result in civil or criminal liability but a court or tribunal may take into account the code in deciding any question. Schedule 5 of the Bill will insert a new Schedule into the Terrorism Act 2000 making supplementary provisions relating to stops and searches. Clause 62 is concerned with modifications to the law in Northern Ireland.

Another area of major civil liberty concern has been the length of time for which a person may be detained prior to charge or release. At one stage there were proposals to make this as long as 90 days with the Police referring to the difficulties of investigation in this area. Under the Terrorism Act 2006 the period is now 14 days and the Bill (Clause 57) seeks to retain 14 days on a permanent basis. (The previous 28 day power was not renewed in January 2011). However, there is draft emergency legislation which would, if enacted, extend the maximum pre-charge detention period to 28 days but with a 6 month time limit on the 28 days power. The government would not bring this forward unless exceptional circumstances justified doing so - see Detention of Terrorists Suspects (Temporary Provisions) Bills.

These provisions do not appear to weaken the powers available to the authorities to deal with terrorism but they may be viewed as a more moderate approach to stop and search powers and pre-charge detention. The sad fact is that this type of legislation continues to be necessary as exemplified by the recent case of Ahmed v R [2011] EWCA Crim 184 discussed on the UK Human Rights blog.

After the Birmingham Six were finally released in 1991, I don't know what was done by the authorities (Police etc) but there seemed to be no real interest in revisiting the investigation into those appalling crimes. In the 20 years since their release many things have altered including the Northern Ireland "peace-process" and in 2010 the long-awaited Saville Inquiry ("Bloody Sunday") finally reported. One suspects that there is now no interest at all in going back to crimes committed in the 1970s. As a matter of strict law I suppose that the investigations could be re-opened and even charges brought but it's highly unlikely to happen.